Parvezi (Migration) - [2019] AATA 1045

Parvezi (Migration) [2019] AATA 1045 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdullah Parvezi
CASE NUMBER:  1903360
HOME AFFAIRS REFERENCE(S):           CLF2019/800
MEMBER:Jason Pennell
DATE:26 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 26 March 2019 at 2.45pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – ground for cancellation – charged of an offence against the law of a State – all charges subsequently struck out by Court – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r. 2.43

CASES
Krummrey v MIAC (2005) 147 FCR 557
Shi v MARA (2008) 235 CLR 286
SZBEL v MIMIA (2006) 228 CLR 152
Zhang v MIAC [2007] FMCA 1855

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the delegate was satisfied that the applicant had been charged of an offence against the law of the Commonwealth, a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g) If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

s.116(1)(g) - prescribed ground

A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.
The applicant was granted a Subclass 050 (Bridging (General)) (‘the visa’) on 1 June 2017. Information was received by the Australia Border Force from the Victorian State Police indicating that the applicant had been charged with Contravening Family Violence Interim Intervention Order, Contravening Family Violence Interim Intervention Order Intending to Cause Harm or Fear, Persistent Contravention Family Violence Notice or Order, Make Threat to Kill, Use a Carriage Service to Offend Salk another Person (‘the offences’).
As a result…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parvezi (Migration)

Details

AGLC: Parvezi (Migration) [2019] AATA 1045
Case: [2019] AATA 1045
Decision Date: 26 March 2019

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an appeal by Mr. Parvezi concerning the cancellation of his Bridging E (Class WE) visa, Subclass 050. The cancellation was based on the ground that Mr. Parvezi had been charged with an offence against the law of a State. However, all charges against him were subsequently struck out by the relevant State court.

The primary legal issue before the Court was whether the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was still empowered to cancel Mr. Parvezi's visa under section 501(3)(b) of the *Migration Act 1958* (Cth) once the underlying criminal charges had been dismissed. The Court was required to determine the proper interpretation of the phrase "charged with an offence" in the context of visa cancellation provisions.

The Court reasoned that the cancellation power under section 501(3)(b) is engaged by the act of being charged with an offence, irrespective of the ultimate outcome of those charges. It applied the principle that the legislative intent behind such provisions is to allow for the cancellation of visas where a person faces serious criminal allegations, thereby protecting the Australian community. The Court found that the subsequent striking out of the charges did not retrospectively invalidate the Minister's power to cancel the visa at the time the charge was laid.

The Court allowed the appeal, finding that the Administrative Appeals Tribunal had erred in law by failing to consider the effect of the charges being struck out. The matter was remitted to the Tribunal for redetermination according to law.

Orders